Citation Nr: 1241357
Decision Date: 12/04/12 Archive Date: 12/12/12
DOCKET NO. 10-39 908 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Milwaukee, Wisconsin
THE ISSUE
Entitlement to service connection for a bilateral knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The Veteran served on active duty from April 1983 to April 1986, and from January 2004 to March 2005.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision that, in pertinent part, denied service connection for a bilateral knee disability. The Veteran timely appealed.
The issue of waiver of the recovery of an overpayment of VA compensation benefits due to hardship and/or validity of debt has been raised by the record (May 2011 correspondence), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran and his representative when further action is required.
REMAND
The Veteran contends that service connection for a bilateral knee disability is warranted on the basis that he damaged both his knees in Iraq from the constant wearing of "load-bearing equipment," and from jumping up and down off the back of trucks and humvees; and that he continues to have bilateral knee pain. He is competent to describe his symptoms.
The Veteran's service personnel records reflect that he served on active duty from April 1983 to April 1986, and from January 2004 to March 2005. There does not appear to be any service treatment records in the claims file for the period of active service from January 2004 to March 2005.
VA is obliged to assist a Veteran to obtain evidence pertinent to his claim. See 38 U.S.C.A. § 5103A (West 2002).
Army National Guard records show that the Veteran was given a temporary profile in July 2008 due to bilateral knee arthritis.
VA treatment records show that the Veteran underwent physical therapy for knee pain in September 2009, with no significant improvement. In October 2009, the Veteran reported that his knee pain began in 2004, following his Iraq tour in which he carried 25-to-30 pound backpacks daily. Since then, his anterior knee pain had worsened. X-rays revealed degenerative changes with small osteophytes. The assessment in October 2009 was bilateral knee pain, likely from osteoarthritis and patellar femoral syndrome.
Records also show that the Veteran was awarded the Combat Infantryman Badge.
Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current bilateral knee disability that either had its onset during service or is related to his active service-to specifically include bilateral knee damage during active service in Iraq, as alleged. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012).
Accordingly, the case is REMANDED for the following action:
1. Undertake appropriate action to obtain the Veteran's complete service treatment records for his period of active duty from January 2004 to March 2005. Send a copy of the Veteran's separation document, if available, with the request. All records and/or responses received should be associated with the claims file.
2. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of bilateral knee pain; and to determine whether it is at least as likely as not (50 percent probability or more) that any such bilateral knee disability either had its onset in service, or is the result of disease or injury incurred or aggravated during active service-specifically, to include in-service bilateral knee damage, as reported by the Veteran; and bilateral knee pain during INACDUTRA in National Guard service in July 2008, as reported by the Veteran and documented in National Guard records. If other causes are more likely, those should be noted. The examiner should reconcile any opinion with the service treatment records, National Guard treatment records, and the Veteran's lay statements. The examiner should provide a rationale for the opinions.
The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file.
3. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order.
No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).